Q: Is there a way of signing over our home to my son, maintain life tenancy, and exclude his current wife?
The home has been in the family for multiple generations and we are not certain his current wife is in this long term and want to be certain if we sign it over she can't get it if they divorce.
The life estate might provide some protection. A trust might provide more, especially during your life. But, at some point in the future, if he and she are living there and you have passed on, then he will probably own the property outright. It would be hard at that point for him to prevent her from getting a share of the house in divorce.
If they were to divorce then he could argue that gifted or inherited property is supposed to be excluded from property division in divorce. She would probably argue in response, that after he got the property he treated it as "their" property not as "his". For example, he might have put her name on the deed during a time when things were good. In addition to this, she would probably argue that she maintained it and put money into it, so it is part hers due to her efforts. That might be true or she might be exaggerating. Either way, he might feel compelled to give her some of the equity in the house in order to settle the case and move on.
Also consider that tying up the house in some way might prevent him from selling or refinancing in the future. That might have unintended consequences. And what if they have kids? It is often hard to plan very far out when there is a young couple involved.
A: There are a few different ways for you to achieve your desired outcome. I would advise you to meet with a lawyer specializing in estate planning to discuss those options. As Attorney Moser informs, separate property my undergo transmutation, in certain circumstances, and be subject to division should a divorce proceeding be commenced.
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